Legal challenge over ‘fracking’ ban in Scotland to proceed to judicial review

A judge in the Court of Session ruled that the application brought by Ineos Upstream Limited and Reach Coal Seam Gas Limited, who claim that their business interests have been “adversely affected” by the decisions, had a “real prospect of success”.

‘Indefinite ban’

Lord Pentland heard that the petitioners were seeking to challenge certain decisions taken by the Scottish Ministers in 2015 and 2017.

The measures taken in 2015 comprised: a decision intimated by way of statement to the Scottish Parliament that there was to be a moratorium on the granting of consents for all unconventional oil and gas (UOG) developments; a direction to that effect to planning authorities; a further direction to the Scottish Environmental Protection Agency (SEPA); and a letter to heads of planning within local authorities intimating the terms of the 2015 planning direction, its coming into force and its intention.

The decisions made in 2017 under challenge were: the announcement in October that year that the Scottish Government would not support the development of UOG in Scotland and subsequent letter to planning authorities to that effect; that it would continue indefinitely in force the earlier directions creating the moratorium; and that it would use planning powers to ensure that UOG applications were considered in line with the position of not supporting UOG development.

According to the petitioners, these decisions amounted to an “indefinite ban” on UOG extraction in Scotland.

Legal challenge ‘time-barred’

But the Lord Advocate, on behalf of the Scottish Ministers, submitted that insofar as the petition sought to challenge those decisions it was “time-barred” because it had been brought long after the expiry of the three-month time limits.

The respondent argued that, in respect of the 2015 decision and the 2015 letter, the petitioners required to make an application to the court’s supervisory jurisdiction within three months of 22 September 2015.

So far as the 2015 planning direction and the 2015 SEPA direction were concerned, it was said that the petitioners had to make an application to the court’s supervisory jurisdiction within three months of 8 October 2015.

Since no application for judicial review was made within the applicable time limit, the challenges brought against the decisions taken in 2015 were time-barred and should not be allowed to proceed.

However, the petitioners’ principal contention was that it is not necessary to extend the time limit under section 27A of the Court of Session Act 1988 because the petition has been brought within three months of the 2017 decisions.

The petitioners submitted that although the petition also challenged the 2015 decisions, it was “necessary” for them to do this for the petition to have “practical effect” because the effect of the 2017 decisions was to continue in force the 2015 planning direction and the 2015 SEPA direction and the effect of the earlier temporary moratorium on the granting of planning and other required consents.

‘Real prospect of success’

Allowing the case to proceed to a full hearing, the judge observed that it was of the “utmost importance” to remember that the “only focus” of the court at this early stage of the proceedings was whether the petitioners’ case had a “real prospect of success”, which was a “low hurdle to overcome”.

In a written opinion, Lord Pentland said: “I agree that in order to show that he or she has a real prospect of success the applicant for judicial review need only demonstrate that he or she has a case which enjoys a realistic chance of succeeding in the sense that the applicant’s contentions are not fanciful or unrealistic. Perhaps another way to put the issue would be to ask if the petitioner’s case is manifestly devoid of merit.

“In my opinion, the court should be careful at the permission stage to resist the temptation to be drawn into a substantive evaluation of the parties’ competing contentions on the merits of the application for judicial review (or some particular aspect of it). The temptation to embark on that type of exercise may be all the more powerful where, as in the present case, detailed and elaborate written submissions are put before the court. But such an exercise would be misguided.

“I acknowledge that there may prove to be force in the respondent’s arguments on time-bar when the issues are comprehensively explored at a substantive hearing, with the advantage of full and developed legal argument on both sides. For the present, I must ask myself simply whether the petitioners’ position on the time-bar aspect of the case is fanciful, speculative or unrealistic.

“Seen through that lens, the answer to the question that arises at this stage is, in my view, clear. I do not consider that it can be said that the petitioners’ arguments on the time-bar point are fanciful or unrealistic. On a provisional view, there may be some possible merit in the proposition that the 2015 and 2017 decisions are closely inter-linked and that this is significant in the wider context of the issues that arise in the case.”

He added: “Beyond saying that, it would not be appropriate for me to attempt any evaluation of the parties’ competing arguments at this preliminary stage. Accordingly, I shall grant permission to proceed on the totality of the petitioners’ case as set out in the petition.”